Farmer v. State of Maryland et al
Filing
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MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 6/4/2015. (kns, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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JAMES F. FARMER,
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Plaintiff,
v.
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STATE OF MARYLAND, ET AL.,
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Defendant.
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Case No.: GJH-14-02584
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MEMORDANDUM OPINION
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This is a civil rights action brought by Plaintiff James Farmer (“Farmer”) against Michael
Leishear (“Leishear”) and Joseph Casper (“Casper”) (collectively, “Defendants”) for purported
violations of 42 U.S.C. § 1983, Article 40 of the Maryland Declaration of Rights, and various
state torts arising from Farmer’s ejection from the District Court of Maryland for St. Mary’s
County on July 18, 2013 by Leishear. This Memorandum and accompanying Order address
Defendants’ Motion to Dismiss, ECF No. 24, as well as Farmer’s Motion to Defer Ruling on
Defendants’ Motion Pending Discovery, ECF No. 31. A hearing is not necessary. See Loc. R.
105.6 (Md.). For the reasons stated below, Defendants’ Motion to Dismiss is GRANTED, in
part, and DENIED, in part, and Farmer’s Motion to Defer Ruling on Defendants’ Motion
Pending Discovery is DENIED.
I.
BACKGROUND
Farmer is a licensed attorney in Maryland. See ECF No. 20 at ¶ 7. On July 18, 2013,
Farmer was in the District Court of Maryland for St. Mary’s County representing a client who
was charged with criminal violations. See id. at ¶ 13. Prior to the start of the court’s proceedings,
Farmer was engaged in preliminary discussions with Assistant State’s Attorney Michael Kane
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(“ASA Kane”) and Trooper First Class Dustin Brill (“TFC Brill”) regarding Farmer’s client’s
case. See id. at ¶ 14. Farmer alleges that he told ASA Kane that the State lacked probable cause
to prosecute his client and that the charges should never have been brought. See id. The
Courtroom Bailiff, Leishear, overheard the conversation and allegedly told Farmer to “shut up.”
See id. at ¶ 17. Shortly thereafter, Farmer left the courtroom for a brief period of time, but
ultimately returned to speak with Leishear. See id. at ¶ 19. During that conversation, Farmer
claims to have informed Leishear that he was representing his client when he was previously
speaking with ASA Kane. See id. Farmer alleges that it was during this exchange that Leishear
grabbed him by the arm, shoved him, and told him to leave the courtroom, whereupon Leishear
instructed three state police officers to escort Farmer from the building. See id. at ¶ 20. As a
result of these actions, Farmer filed the instant lawsuit against Leishear for assault and battery, as
well as for violating his state and federal constitutional rights. Farmer has also sued Leishear’s
supervisor, Caspar, for his alleged failure to supervise and train Leishear.
II.
STANDARD OF REVIEW
Defendants have moved to dismiss Farmer’s amended complaint for failure to state a
claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). “‘[T]he purpose
of Rule 12(b)(6) is to test the legal sufficiency of a complaint’ and not to ‘resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.’” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (quoting Edwards v. City of Goldsboro, 178
F.3d 231, 243-44 (4th Cir. 1999)). In order to survive a motion to dismiss under Rule 12(b)(6),
“a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Generally, when ruling on a 12(b)(6) motion, the court
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assumes that the facts alleged in the complaint are true and draws all reasonable factual
inferences in the nonmoving party’s favor. Edwards, 178 F.3d at 244. A complaint need not
provide “detailed factual allegations,” but it must “provide the grounds of [the plaintiff’s]
entitlement to relief” with “more than labels and conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550 U.S. at 555 (internal quotations omitted).
III.
DISCUSSION
A.
Federal Claims
1.
Section 1983 – First Amendment
Count I of Farmer’s amended complaint involves an alleged violation of 42 U.S.C. §
1983 by Leishear. The gist of Farmer’s claim is that Leishear chilled Farmer’s First Amendment
right to free speech by retaliating against him for engaging in protected speech while speaking
with ASA Kane and TFC Brill during pre-court proceedings on July 18, 2013. See ECF No. 20 at
¶¶ 35-40. It is well settled that “[t]he First Amendment right to free speech includes not only the
affirmative right to speak, but also the right to be free from retaliation by a public official for the
exercise of that right.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000).
Accordingly, the Fourth Circuit has held that a First Amendment retaliation claim brought
under 42 U.S.C. § 1983 must include three elements:
First, the plaintiff must demonstrate that his or her speech was
protected. Second, the plaintiff must demonstrate that the
defendant’s alleged retaliatory action adversely affected the
plaintiff’s constitutionally protected speech. Third, the plaintiff
must demonstrate that a causal relationship exists between [the]
speech and the defendant’s retaliatory action.
Id. (internal citations omitted). Here, the Court concludes that Farmer has adequately pled these
three elements.
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First, Farmer has adequately alleged that he was engaged in protected speech when he
was talking to ASA Kane and TFC Brill prior to the commencement of the court’s proceedings
on July 18, 2013. Although Defendants rely on affidavits signed by ASA Kane and TFC Brill to
suggest that Farmer’s speech was “loud” and “belligerent” and therefore unprotected (see ECF
Nos. 24-2 at ¶¶ 2-3 & 24-3 at ¶¶ 2-3), the Court cannot consider these affidavits when ruling on
Defendants’ motion to dismiss. See Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007)
(recognizing that a court, ordinarily, “is not to consider matters outside the pleadings or resolve
factual disputes when ruling on a motion to dismiss”).
Rather, the Court is limited to the allegations contained in the amended complaint, which
sufficiently allege that Farmer was engaged in protected speech when he was talking to ASA
Kane and TFC Brill prior to the July 18, 2013 court proceeding.
Concerning the second element – that Leishear’s alleged retaliatory action adversely
affected Farmer’s constitutionally protected speech – the key inquiry is “whether a similarly
situated person of ‘ordinary firmness’ reasonably would be chilled by the government conduct in
light of the circumstances presented in the particular case.” The Baltimore Sun Co. v. Ehrlich,
437 F.3d 410, 416 (4th Cir. 2006). “Determining whether a plaintiff’s First Amendment rights
were adversely affected by retaliatory conduct is a fact intensive inquiry that focuses on the
status of the speaker, the status of the retaliator, the relationship between the speaker and the
retaliator, and the nature of the retaliatory acts.” Suarez, 202 F.3d at 686. In light of these factors,
particularly Leishear’s status as a courtroom bailiff, Farmer’s status as a private attorney seeking
to represent his client in a criminal proceeding, and the nature in which Farmer was removed
from the courthouse by policemen, the Court concludes that Farmer’s allegations plausibly
suggest that a similarly situated person of “ordinary firmness” would be chilled by Leishear’s
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conduct and the consequences thereof. Specifically, by having Farmer forcibly removed from
court by policemen prior to the commencement of his client’s criminal proceeding, Leishear
created a situation that inhibited Farmer’s exercise of his First Amendment rights. As such, the
Court concludes that Farmer has adequately alleged that Leishear’s conduct adversely affected
Farmer’s constitutionally protected right to free speech.
Finally, the Court concludes that Farmer has adequately alleged a causal link between his
speech and Leishear’s allegedly retaliatory action. The Court will therefore deny Leishear’s
motion to dismiss Farmer’s § 1983 claim against him. In doing so, the Court notes that, at this
stage of the proceeding, it cannot conclude that Leishear is protected by absolute quasi-judicial
immunity, as he argues. See ECF No. 24-1 at 12-151. “Absolute quasi-judicial immunity derives
from absolute judicial immunity.” Roland v. Phillips, 19 F.3d 552, 555 (11th Cir. 1994). Judges
are absolutely immune from suit for money damages when they act in their judicial capacity,
unless their actions are “taken in the complete absence of all jurisdiction.” Duty v. City of
Springdale, Ark., 42 F.3d 460, 462 (8th Cir. 1994). A judge’s absolute immunity extends to
public officials for “‘acts they are specifically required to do under court order or at a judge’s
direction.’” Robinson v. Freeze, 15 F.3d 107, 109 (8th Cir. 1994) (quoting Rogers v. Bruntrager,
841 F.2d 853, 856 (8th Cir. 1988)). Like other officials, bailiffs enjoy absolute quasi-judicial
immunity for actions “specifically ordered by the trial judge and related to the judicial function.”
Id. Viewing the allegations in the light most favorable to Farmer, the Court cannot conclude that
Leishear was specifically ordered by the trial judge of the District Court of Maryland for St.
Mary’s County to forcibly remove Farmer from the court on July 18, 2013. Rather, it appears
from the amended complaint that Leishear ordered Farmer removed from the courtroom on his
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For the citations to page numbers in this Memorandum Opinion, the Court uses the page
numbers assigned to the document from CM/ECF or PACER.
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own volition, without the trial judge’s order to do so. Under these circumstances, the Court
cannot conclude that Leishear is protected by absolute quasi-judicial immunity. See Battle v.
Whitehurst, 831 F. Supp. 522, 528 (E.D. Va. 1993) aff’d, 36 F.3d 1091 (4th Cir. 1994) (“Court
clerks . . . are accorded derivative absolute immunity when they act in obedience to judicial order
or under the court’s direction.”).
Nor can the Court conclude, at this stage of the proceeding, that Leishear is protected
under qualified immunity. Qualified immunity affords a government official protection from
suits for monetary damages when the official has acted in good faith. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). This brand of immunity is “an affirmative defense that
shields government officials performing discretionary functions from personal-capacity liability
for civil damages under § 1983, insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Occupy
Columbia v. Haley, 738 F.3d 107, 118 (4th Cir. 2013) (internal quotation marks omitted); see
also Harlow, 457 U.S. at 818. The doctrine is intended to apply to “gray areas, where the law is
unsettled or murky,” rather than situations where the government actors were “plainly
incompetent or . . . knowingly violate[d] the law.” Occupy Columbia, 738 F.3d at 118.
The Fourth Circuit articulated the relevant test for qualified immunity in Pritchett v.
Alford, 973 F.2d 307 (4th Cir. 1992). In ruling on a defense of qualified immunity, a court must
(1) identify “the specific right allegedly violated”; (2) determine “whether at the time of the
alleged violation the right was clearly established”; and (3) if so, then decide “whether a
reasonable person in the officer’s position would have known that doing what he did would
violate that right.” Pritchett, 973 F.2d at 312. The first two criteria are pure questions of law to
be resolved by the court. See id. The third criterion, which requires an evaluation of the objective
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reasonableness of the conduct in question, may necessitate the resolution of disputed factual
issues surrounding the conduct. See id. For example, “[i]n instances where there is a material
dispute over what the defendant did, and under the plaintiff’s version of the events the defendant
would have, but under the defendant’s version of events he would not have, violated clearly
established law, it may be that the qualified immunity question cannot be resolved
without discovery.” DiMeglio v. Haines, 45 F.3d 790, 795 (4th Cir. 1995). This case presents
such a situation.
Specifically, Leishear argues that he “was reasonably performing his duties as bailiff and
asking [Farmer] to calm down from his belligerent behavior of screaming and yelling at TFC
Brill.” ECF No. 24-1 at 25. This argument, however, relies on facts contained in affidavits from
ASA Kane and TFC Brill. See ECF Nos. 24-2 at ¶¶ 2-3 and 24-3 at ¶¶ 2-3. At this stage of the
proceeding, however, the Court is limited to the allegations contained in the amended complaint,
which allege that Leishear, “without provocation” “forcefully grabbed Farmer by the arm,
shoved [him] and told him to leave the courtroom.” ECF No. 20 at ¶ 19. To credit Leishear’s
argument at this stage would be to disregard the allegations contained in the amended complaint,
which the Court is not permitted to do. As such, the Court cannot yet conclude that Leishear is
entitled to qualified immunity. See Smith v. Mothershed, No. 12-3215, 2013 WL 4501310, at *3
(D. Md. Aug. 21, 2013) (denying motion to dismiss based on qualified immunity where the
parties dispute the reasonableness of the officer’s conduct). If, however, discovery ultimately
supports the statements contained in ASA Kane’s and TFC’s Brill’s affidavits – namely, that
Leishear’s conduct was in response to Farmer’s disorderly conduct – the Court would be hard-
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pressed to find Leishear’s conduct not protected by qualified immunity. At this stage, however,
the Court must deny Defendants’ motion to dismiss Farmer’s § 1983 claim against Leishear.2
2.
Section 1983 - Failure to Train & Supervise
Count II of Farmer’s amended complaint alleges a claim under 42 U.S.C. § 1983 against
Caspar for his alleged failure to adequately train and supervise Leishear. See ECF No. 20 at ¶¶
41-48. The doctrines of vicarious liability and respondeat superior, however, are generally not
applicable in § 1983 actions. See Vinnedge v. Gibbs, 550 F.2d 926, 927-99 (4th Cir. 1977); see
also Monell v. Department of Social Services of City of N.Y., 436 U.S. 658, 691 (1978).
Supervisory officials may be held liable only in certain circumstances for the constitutional
injuries inflicted by their subordinates. See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.
1994) (citing Slakan v. Porter, 737 F.2d 368 (4th Cir. 1984)). Supervisory liability is not
premised on respondeat superior, but upon “a recognition that supervisory indifference or tacit
authorization of subordinates’ misconduct may be a causative factor in the constitutional injuries
they inflict on those committed to their care.” Id. at 798 (quoting Slakan, 737 F.2d at 372-73).
“[L]iability ultimately is determined ‘by pinpointing the persons in the decisionmaking chain
whose deliberate indifference permitted the constitutional abuses to continue unchecked.’” Id.
(citation omitted).
To establish supervisory liability under § 1983, a plaintiff must adequately allege: 1) the
supervisor had actual or constructive knowledge that his subordinate was engaged in conduct
that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the
2
Because Article 40 of the Maryland Declaration of Rights is generally construed in pari
material with the First Amendment of the Federal Constitution, the Court will decline to dismiss
Count III of Farmer’s amended complaint, which raises a retaliation claim against Leishear for
violating of Article 40 of the Maryland Declaration of Rights. See Nefedro v. Montgomery
Cnty., 996 A.2d 850, 855 n. 5 (Md. 2010); see also WBAL–TV Div., Hearst Corp. v. State, 477
A.2d 776, 781 n. 4 (Md. 1984).
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plaintiff; 2) the supervisor’s response to that knowledge was so inadequate as to show “deliberate
indifference to or tacit authorization of the alleged offensive practices”; and 3) there was an
“affirmative causal link” between the supervisor’s inaction and the particular constitutional
injury suffered by the plaintiff. See Shaw, 13 F.3d at 799. Farmer has not adequately alleged
facts which would support any of these three elements.
First, Farmer has not adequately alleged that Caspar had “actual or constructive
knowledge” that Leishear was engaged in conduct that posed “a pervasive and unreasonable
risk” of constitutional injury. Id. At most, Farmer alleges in a conclusory fashion that “Defendant
Caspar has had actual or constructive knowledge of Defendant Leishear’s reckless and assaultive
behavior.” ECF No. 20 at ¶ 28. But this is a legal conclusion. Farmer must allege facts that
support this conclusion and he has not done so. See. e.g., Young v. City of Mount Ranier, 238
F.3d 567, 577 (4th Cir. 2001) (noting that the “presence . . . of a few conclusory legal terms does
not insulate a complaint from dismissal under Rule 12(b)(6)” when the facts alleged do not
support the legal conclusions).
Specifically, Farmer has not alleged any facts that demonstrate how Caspar had actual
knowledge of Leishear’s allegedly “reckless and assaultive behavior.” He has not alleged that
Caspar was present at the July 18, 2013 court proceeding or that he was otherwise aware of the
events that transpired on that date. Instead, Farmer suggests that Caspar had constructive
knowledge of Leishear’s “reckless and assaultive behavior” because, at some unspecified date
and time, Leishear ejected another courtroom attendee from the courtroom from whispering in
court. See ECF No. 20 at ¶ 27. Again, however, Farmer does not allege that Caspar was aware,
either directly or indirectly, of this incident. Nor has he even alleged that Caspar was Leishear’s
supervisor at the time of this event. As such, Farmer has failed to adequately allege that Caspar
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had actual or constructive knowledge that Leishear was engaged in conduct that posed “a
pervasive and unreasonable risk” of constitutional injury. See Shaw, 13 F.3d at 799.3
Second, Farmer has not adequately alleged that Caspar’s response to Leishear’s behavior
was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged
offensive practices.” See Shaw, 13 F.3d at 799. “Deliberate indifference is more than
negligence.” Pearson v. Simms, 345 F. Supp. 2d 515, 521 (D. Md. 2003) aff’d, 88 F. App’x 639
(4th Cir. 2004). As one court explained:
Generally, a failure to supervise gives rise to a § 1983 liability,
however, only in those situations in which there is a history of
widespread abuse. Only then may knowledge be imputed to the
supervisory personnel. A single act or isolated incident are
normally insufficient to establish supervisory inaction upon which
to predicate § 1983 liability.
Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983) (citations and footnote omitted);see
e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 167 (1970) (custom denotes “persistent and
widespread . . . practices”); Knight v. Carlson, 478 F.Supp. 55, 58 (E.D. Cal. 1979) (custom
denotes “settled governmental practice or ‘[d]eeply embedded traditional ways of carrying out
[government] policy’”). At most, Farmer identifies one other incident involving Leishear that
occurred at some unspecified time. See ECF No. 20 at ¶ 27.This does not amount to a “history of
widespread abuse’ by Leishear (or anyone else) from which to impute knowledge to Caspar. See
Chin v. City of Baltimore, 241 F.Supp.2d 546, 549 (D. Md. 2003) (finding in the § 1983 context
that an alleged single incident of police misconduct is insufficient for stating a claim based on a
government custom or policy).
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Farmer also attempts to support his §1983 claim against Caspar by referencing actions taken by
another bailiff, Francis Patterson, that Caspar allegedly “sanctioned or condoned.” ECF No. 20 at
¶ 28. These allegations, however, are not relevant to Farmer’s § 1983 claim against Caspar,
which specifically challenges Caspar’s alleged failure to train or supervise Leishear.
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Even if the exact number incidents is an issue of proof and not necessarily determinative
at the pleading stage (see Price v. City of Fayetteville, N.C., 22 F. Supp. 3d 551, 563-64
(E.D.N.C. 2014), the amended complaint, nevertheless, contains no factual allegations, like those
in Price, from which the Court could infer that Caspar, by his own actions, sanctioned or
condoned a practice which led to the alleged violation of Farmer’s constitutional rights. Indeed,
Farmer only alleges generally that Caspar failed to train or supervise Leishear and that this
failure was the result of gross negligence or malice towards Farmer. ECF No. 20 at ¶¶ 29, 32.
This is not enough to allege “deliberate indifference.” Thus, Farmer has failed to allege a viable
failure to train or supervise claim against Caspar. See Milligan v. City of Newport News, 743
F.2d 227, 230 (4th Cir. 1984) (upholding the district court's dismissal of a plaintiff’s Monell
claim where the complaint alleged only that the City was “ ‘grossly negligent’ in failing
adequately to train its personnel and that this exhibited ‘callous disregard’ for [the plaintiff]’s
constitutional rights”); Jackson v. Brickey, 771 F.Supp.2d 593, 597-98, 604 (W.D. Va. 2011)
(concluding that a plaintiff’s allegations of “institution-wide failure to train . . . and . . .
deliberate[ ] indifferen[ce] to Constitutional rights” constituted “naked assertion[s] devoid of
further factual enhancement” that were “not entitled to the assumption of truth”); Ross v. Prince
George’s Cnty., No. 11-1984, 2012 WL 1204087, at *9 (D. Md. Apr. 10, 2012) (dismissing
plaintiff’s Monell claim because the complaint “merely state[d] in conclusory terms that the
County failed ‘to adequately train and supervise officers in the proper use of force’ and that it
‘consistently failed’ to investigate, discipline, and record acts of excessive force”).
Finally, Farmer has not adequately alleged an “affirmative causal link” between Caspar’s
alleged inaction and Farmer’s injury. See Shaw, 13 F.3d at 799. Again, all that Farmer alleges in
this regard is that “as a direct and proximate result of Caspar’s failure to train and supervise
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Leishear, Leishear violated Farmer’s First Amendment rights to Freedom of Speech and
Association and caused Farmer to suffer an unwanted and unjustified touching.” ECF No. 20 at ¶
47. This, however, is not enough to state a claim for failure to train or supervise under §1983,
which requires “specific allegations connecting conduct by [Caspar] to [Farmer’s] alleged
constitutional deprivation . . . .” Adams v. Univ. of Md. at Coll. Park, No. 00-3177, 2001 WL
333095, at *4 (D. Md. March 6, 2001) (“Absent specific allegations connecting conduct by [the
supervisory official] to Plaintiff's alleged constitutional deprivation, the Court must dismiss
[the § 1983] claim [for] . . . lack of detail.”). The Court will therefore dismiss Farmer’s § 1983
claim against Caspar without prejudice to his right to amend his complaint to cure the
deficiencies identified herein, if he can do so.
B.
State Law Claims
Counts IV and V of Farmer’s amended complaint allege that Leishear assaulted and
battered him. See ECF No. 20 at ¶¶ 53-63. Additionally, Count VI alleges that Caspar failed to
adequately supervise or train Leishear in violation of state law. See id. at ¶¶ 64-68. Defendants
have moved to dismiss these claims on the basis that they are protected by state personnel
liability pursuant to § 5–522(b) of the Maryland Tort Claims Act (“MTCA”).
Under Section 5-522(b) of the MTCA, state personnel are immune from liability “for a
tortious act or omission that is within the scope of the public duties of the State personnel and is
made without malice or gross negligence.” Md.Code, § 5-522(b). For purposes of MTCA
immunity, “malice” refers to so-called “actual malice,” i.e., “conduct characterized by evil or
wrongful motive, intent to injure, knowing and deliberate wrongdoing, ill-will or fraud.” Lee v.
Cline, 384 Md. 245, 268 (Md. 2004). Gross negligence means “‘an intentional failure to perform
a manifest duty in reckless disregard of the consequences as affecting the life or property of
another, and also implies a thoughtless disregard of the consequences without the exertion of any
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effort to avoid them.” Newell v. Runnels, 407 Md. 578, 638 (Md. 2009). Put another
way, gross negligence is found when a State employee is so “utterly indifferent to the rights of
others that he acts as if such rights did not exist.” Barbre v. Pope, 402 Md. 157, 187 (2007)
(citation omitted). “[S]tate personnel are not immune from suit and liability in tort when the
plaintiff’s complaint sufficiently alleges malice or gross negligence.” Id. at 181-82. (emphasis in
original).
Accepting as true the allegations in Farmer’s amended complaint, the Court finds that
Farmer has adequately alleged gross negligence as to Leishear. Specifically, Farmer alleges that
on July 18, 2013 during a conversation in the District Court of Maryland for St. Mary’s County,
without provocation, “Leishear, aggressively . . . [and] forcefully grabbed Farmer by the arm,
shoved [him] and told him to leave the courtroom.” ECF No. 20 at ¶ 19. Then, as Farmer was
leaving the courtroom, “Leishear, without provocation from Farmer, aggressively and forcefully
grabbed Farmer by the arm, shoved [him] and instructed three (3) state police officers to escort
Farmer from the building.” Id. at ¶ 20. Again, assuming these facts to be true, the Court
concludes that these allegations reflect Leishear’s utter indifference to Farmer’s First
Amendment rights. See Barbre, 402 Md. 157, 187. Accordingly, the Court will not dismiss
Farmer’s assault and battery claims against Leishear on the basis of state personnel immunity.
See, e.g., id. at 186 (plaintiff sufficiently alleged malice where officer shot him in the neck while
his hands were raised in surrender); Lee, 384 Md. at 269-70 (plaintiff sufficiently alleged malice
where officer extended traffic stop and called for canine search without justification, yelled at
plaintiff, and described plaintiff to dispatcher, without justification, as an “uncooperative
suspect”); Okwa v. Harper, 360 Md. 161, 182 (Md. 2000) (plaintiff sufficiently alleged malice
where arresting officers “beat [plaintiff] about his head and neck while they twisted his
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thumbs”); Sawyer v. Humphries, 322 Md. 247, 261 (1991) (plaintiff sufficiently alleged malice
where officer, unprovoked and without cause, threw rock at plaintiff's vehicle, wrestled him to
the ground, grabbed him by hair, and repeatedly hit his face, saying that he was “going to kill”
plaintiff).
As for Caspar, however, the Court reaches a different conclusion. It is not enough for
Farmer to just “throw in the term ‘gross negligence’” or “malice” in his complaint. Foor v.
Juvenile Servs. Admin., 78 Md. App. 151, 170 (Md. 1989). Rather, Farmer must allege facts that,
if proven, would amount to gross negligence or actual malice. As discussed supra Section
III.A.2, Farmer has not done so. Accordingly, the Court will dismiss Farmer’s failure to
train/supervise without prejudice to his right to amend his complaint to cure this deficiency, if he
can do so.
IV.
CONCLUSION
For the reasons stated above, the Court will GRANT, in part, and DENY, in part,
Defendants’ motion to dismiss. Specifically, the Court will DENY Defendants’ motion as to
Counts I, III, IV, and V, and will GRANT Defendants’ motion as to Count II and VI. Thus,
Defendant Caspar is dismissed from this action II). As for Farmer’s Motion to Defer Ruling on
Defendants’ Motion Pending Discovery, the Court will DENY that motion.
Dated: June 4, 2015
/S/
George J. Hazel
United States District Judge
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